Updating the Tennessee Wetlands Law

• Anyone who has spent much time involved in Farm Bureau knows we have long advocated for clarity surrounding the federal definition of waters of the United States (WOTUS), but we have infrequently discussed waters of the state of Tennessee. 

• State lawmakers brought legislation in both 2023 and 2024 seeking to limit the state’s authority over wetlands. 

• The Tennessee Department of Environment and Conservation (TDEC) was charged by the Chairman of the Senate Energy, Agriculture, and Natural Resources Committee to establish a working group of stakeholders to help draft legislation, of which TFBF is a member. 

• In the Sackett vs. EPA US Supreme Court decision, which limited the federal government’s authority over WOTUS, the court was explicit that states have the ability to regulate waters determined to be non-WOTUS. Ultimately, Tennessee lawmakers are seeking to update the state law which defines wetlands and then how much regulation the state can have over those wetlands. 

1. At what point should the state’s authority over water take precedent over the individual landowner’s property rights?
2. Should Farm Bureau’s effort in this policy discussion be to protect the current agricultural exemptions, or to expand the individual property owner’s rights? Or both? 
3. What further information do you need on this topic to better update Farm Bureau policy? 

From a legal perspective, waters of Tennessee is defined in TCA 69-3-102 which says, in part, “the waters of Tennessee are the property of the state and are held in public trust for the use of the people of the state”. However, as landowners, you have the right to use riparian water. Riparian water is the water connected to property by going through the property, adjacent rivers and streams, connected wetlands, or groundwater underneath the property. Common law riparian rights are recognized in Tennessee for surface and groundwater sources. This practice precedes Tennessee statehood and the basis for riparian rights can be traced to English water rights doctrine. Water is an attribute to property. Property with riparian access to water has a value associated with this riparian right and is considered by landowners to be a property right. Since the Tennessee legislature put water under public trust, meaning the state owns the water and can regulate it, lawmakers are seeking to update when and how the state should regulate. Lawmakers are attempting to define the competing interests of the State of Tennessee owning the water, while recognizing individuals own the land. Furthermore, at what point should the state be able to tell the landowner when regulation can be applied to the land which has water on it? 

State lawmakers brought legislation in both 2023 and 2024 seeking to limit the state’s authority over wetlands. Legislation which passed in 2023, Public Chapter 170, took smalls steps, limiting the amount of compensatory mitigation in instances in which the wetland was very small. Sponsors indicated their intent to bring comprehensive legislation in 2024 to rewrite the entire wetlands law for Tennessee. This was attempted in the amended version of SB631/HB1054, which Tennessee Farm Bureau Federation (TFBF) supported. From a legislative process this bill moved through the House Agriculture and Natural Resources Committee being amended along the way but was sent to a summer study by the Senate Energy, Agriculture and Natural Resources Committee. The Tennessee Department of Environment and Conservation (TDEC) was charged by the chairman of the Senate committee to establish a working group of stakeholders to help draft legislation, which TFBF is serving on.  

The current Tennessee Law which regulates waters of the state is mostly found in the Water Quality Control Act of 1977 (WQCA), found in Title 69, Chapter 3, Part 1; where TCA  69-3-103 defines “wetlands” as:  

(A) An area that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions; and  

(B) A type of waters that are not wet weather conveyances, and generally include swamps, marshes, bogs, and similar areas.  

This is a similar definition used by the federal government, with some limited variation, to be consistent with Tennessee law. According to a recent analysis from TDEC-  

“Some features would meet the definition of a wetland, yet not be considered jurisdictional waters by either the state of Tennessee or the federal government. For example, wetlands are not regulated by state or federal agencies if the feature is located completely within single property ownership and is not connected to jurisdictional waters by either a surface water or groundwater connection.  

Wetlands and other aquatic features are identified and delineated by private sector consultants and submitted to TDEC for concurrence for permitting purposes. TDEC staff usually concur or request additional information about these determinations within 30 days of a complete submittal.  

Wetland Regulation 

When a feature is identified as a jurisdictional wetland under state law, that does not mean the feature must be preserved. It means that an Aquatic Resource Alteration Permit (ARAP) from TDEC is required to physically alter it. There are two kinds of ARAPs: general and individual permits.” 

(continued) 

“The extent of compensatory mitigation required for an Individual ARAP is outlined in the permit. Mitigation is not provided by TDEC, but instead by the permittee or by third-party private sector mitigation bankers or in-lieu fee programs. The cost and availability of third-party mitigation is market-driven.” 

To read the full report from TDEC, click HERE. 

There are federal and state exemptions to agricultural activities to certain wetland regulations. Specifically, in the Tennessee WQCA in 69-3-120(g): 

“Nothing whatsoever in this part shall be so construed as applying to any agricultural or forestry activity or the activities necessary to the conduct and operations thereof or to any lands devoted to the production of any agricultural or forestry products, unless there is a point source discharge from a discernible, confined, and discrete water conveyance.” 

In the Sackett vs. EPA US Supreme Court decision, which limited the federal government’s authority over WOTUS, the court was explicit that states have the ability to regulate waters determined to be non-WOTUS. Ultimately, Tennessee lawmakers are seeking to update the state law which defines wetlands and then how much regulation the state can have over those wetlands.  Even though there are currently significant exemptions for regulations on agricultural production in Tennessee, TFBF supports the effort to update the state statute in order to better define private property rights versus state authority over water. 

Any erosion of private property rights weakens all other rights guaranteed to individuals by the Constitution. (continued)  

All local, state and federal regulations encroaching on the rights of private property owners should be reviewed and altered. (continued) 

In addition, any action by government that diminishes an owner’s right to use their property is a taking of that owner’s property. Therefore, government should provide due process and compensate to the exact degree that an owner’s right to use their property has been diminished by government action. 

Wetlands 

We oppose legislation prohibiting proper drainage and maintenance of agricultural land and defining productive agricultural lands or woodlands as wetlands, or protected wetlands. Tennessee Farm Bureau should vigorously identify problems caused by broad wetlands definitions and by wetland regulating agencies (TWRA, Tennessee Department of Environment and Conservation – including the Board of Water Quality, Oil and Gas, U.S. Fish and Wildlife Service, EPA, and the Corps of Engineers).  

A single agency, such as the Natural Resources Conservation Service, should make determinations and issue all permits for wetlands alterations affected by both federal and state rules. Economic impact statements should accompany environmental impact statements, so a clear picture of benefits and costs is presented. We oppose any increase in permit fees and believe all fees should be refundable if the permit is not granted. Farm Bureau should pursue litigation when high fees or other limitations on private property rights become so great as to constitute a “taking” of private property by government. 

Soil Conservation (Partial) 

Landowners should be encouraged to maintain drainage in a manner that does not infringe on neighboring landowners. Landowners with property delineated “Prior Converted Wetlands” and “Farmed Wetlands” are encouraged to maintain production agriculture on the property and not abandon acreage by allowing it to revert to wetland status where it may affect adjoining property. Property allowed to revert to wetland status could fall under regulatory control of federal and state agencies and could no longer be farmed. Private property rights must be protected. The perception is that wetlands are “public” resources, however, they are most often on private property. 

Water (Partial) 

Water is one of Tennessee’s most valuable natural resources. In the future, many decisions will be made to protect this resource. 

We support the English doctrine of riparian water rights to surface and groundwater. (continued)  

The regulatory reach of “waters of the state” is greater than “waters of the United States” (WOTUS). Truly navigable waters should be protected in order to ensure water quality. However, the definition of “waters” in Tennessee law needs to provide a regulatory exception for surface waters which are not “navigable waters” as defined in the federal Clean Water Act. This would provide consistency between state and federal law and assure that Tennessee will not lose its primacy or delegation under the Clean Water Act. It also would eliminate much of the guesswork and permitting that property owners currently must go through. Jurisdictional waters by the Federal government should be constrained to navigable waterways. Expansion of regulatory authority by the state or federal agencies without approval by the appropriate lawmakers should be strictly prohibited and swiftly enforced by the judicial branch. (continued) 

We support the agriculture and forestry exemption in Tennessee’s Water Quality Act